NYC Issues Updated Earned Safe and Sick Time Act Notice, Guidance, and Model Forms
The New York City Department of Consumer and Worker Protection (DCWP) recently released an updated Notice of Employee Rights under the NYC Earned Safe and Sick Time Act (ESSTA). The Notice was updated to reflect new employee entitlements to unpaid sick/safe time and paid prenatal leave. You can read more about those updated entitlements in our prior alerts here and here. Employers must distribute the updated Notice to all current employees immediately and all new hires going forward. Employers must also update their workplace posters to include the updated Notice. Note that the updated Notice and guidance use the term “Protected Time Off” to refer to paid and unpaid sick/safe time.
The DCWP also published updated Frequently Asked Questions (FAQs). The FAQs are largely the same as prior versions, but do provide additional guidance on paid prenatal leave, unpaid sick/safe time, and the expanded reasons employees are now permitted to use sick/safe time. Under the amended law, employees can now use sick/safe time (1) to care for the employee’s minor child or care recipient, (2) due to a business or childcare closure related to a public disaster, (3) to initiate, attend, or prepare for legal proceedings, or (4) to take steps to restore subsistence benefits or housing assistance for the employee or their family member or care recipient. Below is a summary of the major additions to the FAQs.
Collective Bargaining Agreements. ESSTA is clear that employees covered by a collective bargaining agreement (CBA) may be excluded from ESSTA if the CBA explicitly waives the law’s protections and offers comparable benefits. The FAQs specify that a comparable benefit must include the following components or an equivalent: (1) 40 or 56 hours of paid sick/safe time, depending on employer size; (2) additional 32 immediately available hours of paid or unpaid time off; (3) additional 20 hours of paid prenatal leave; (4) use of such time for all protected reasons under ESSTA, including family care; and (5) no discipline (including points systems) for using protected time off.
Public Emergencies & Severe Weather Events. ESSTA now permits employees to use sick/safe time during public emergencies, including severe weather events, when due to a declared emergency, employees are directed to remain indoors or avoid travel by a government official or when the employee’s workplace or their child’s school or daycare is closed. In addition, the FAQs state that employees can use sick/safe time when weather-related conditions impact their health or the health of their family members. For example, if employees become ill due to extreme heat or poor air quality, they can take sick/safe time to recover. Employees may also use sick/safe time to care for themselves or a family member if exposure to certain weather would pose a risk to the employee or a family member due to an underlying medical condition.
Child Care. ESSTA was expanded to permit the use of sick/safe time for caregiving responsibilities for a minor child or household member with a disability. The FAQs make clear that sick/safe time may be used to care for a child on school holidays or due to unexpected issues like daycare closures or babysitter cancelations.
Bereavement. Employees may not take sick/safe time as a substitute for bereavement leave. However, the FAQs state that after a loss, people may experience anxiety or depression, which are mental health conditions under ESSTA. Thus, the FAQs provide that employees may use sick/safe time due to their own anxiety or depression following a loss or to attend a funeral to care for a family member who needs care for a mental or physical health condition.
Paid Prenatal Leave Bank. Paid prenatal leave must be provided in a separate bank that is distinct from sick/safe time or vacation time. Accordingly, an employer that provides more than the required minimum amount of sick/safe time does not satisfy its obligation to provide paid prenatal leave. The FAQs also state that if an employee does not specify the type of leave they want to use, but discloses that leave is for a pregnancy-related reason, the employer should use the employee’s paid prenatal leave first.
Unpaid Sick/Safe Leave Bank. Employers are now required to provide an additional 32 hours of unpaid sick/safe time that can be used immediately. Employers can either offer a separate bank of unpaid sick/safe time to employees or add an additional 32 hours of paid sick/safe time to the employee’s base entitlement. A separate bank of unpaid sick/safe time is not required so long as at least 32 hours of the paid sick/safe time is immediately available for use. If an employer offers a separate unpaid sick/safe time bank and an employee has both paid and unpaid sick/safe time available, the FAQs state that the employer should provide paid time unless the employee specifically requests to use unpaid sick/safe time.
Swapping Shifts. While an employer can never require an employee to make up time spent on sick/safe time, the FAQs state that, when permitted by the employer, an employee can voluntarily agree to work additional hours or swap shifts within 7 days before or after the absence. If the employee agrees to work additional hours but the additional time is less than the number of hours the employee was originally scheduled to work, the employee can still use sick/safe time to cover the difference.
Per Diem Employees. The FAQs expand when per diem employees are permitted to use sick/safe leave. Per diem employees can use sick/safe time for hours they were scheduled to work or hours they would have worked if they hadn’t used leave. To calculate how much to pay a per diem employee for sick/safe time, an employer must look to how many hours the per diem employee’s replacement worked during the same shift. If that method of calculation is not possible, then the amount of sick/safe time must be based on the hours worked by the per diem employee when the employee most recently worked the same shift.
Pay stubs. ESSTA has long required employers to include on an employee’s pay stub each pay date information about their accrued and used sick/safe time. Going forward, an employer must include the following information on all paystubs: (1) the amount of sick/safe time accrued during the pay period; (2) the amount of paid and unpaid sick/safe time used during the pay period; (3) the amount of immediately available unpaid sick/safe time available for use in the year; and (4) the amount of accrued sick/safe available for use in the year. Note, however, that if an employer frontloads an employee’s full entitlement of paid sick/safe time (e.g., 40 hours or 56 hours depending on employer size) at the beginning of the calendar year, the employer is not required to list accruals on the pay stub. In addition, for each pay period that an employee uses paid prenatal leave, the employer must give the employee the following information in writing: (1) the amount of paid prenatal leave used during the pay period and (2) the total amount of paid prenatal leave still available for use in the 52-week period. Information about prenatal leave can be provided on the pay stub or in a separate writing.
The DCWP also updated its guidance on what must be included in sick/safe time and paid prenatal leave policies. Of note, the guidance states that employers may use terms other than “protected time off” or “sick and safe leave” to describe policies providing sick/safe leave (e.g., paid time off, vacation), but that such policies must state that the leave meets or exceeds all requirements of NYC’s Protected Time Off Law and include the following language: “Such leave may be used by an employee for any of the purposes set forth in NYC’s Protected Time Off Law and its rules.” Employers with PTO policies instead of separate sick/safe time policies should review their PTO policy for compliance with the new requirements and include the mandated language. Note that employers are required to distribute sick/safe time policies to employees within 14 days of revising their sick/safe time policies.
Lastly, the DCWP also released the following new model forms that employers may, but are not required, to use:
Employee Notification of Use of Sick/Safe Time or Paid Prenatal Leave: For employees to notify their employer of their intention to use leave.
Employee Request to Make Up Missed Work as an Alternative to Using Protected Time Off or Paid Prenatal Leave: For employees who wish to make up missed time instead of using protected leave.
Confirmation of Use of Protected Time Off or Paid Prenatal Leave: For employees to confirm that sick/safe time or prenatal leave taken was for an authorized purpose. Note that the use of this model form may conflict with the New York State Sick Leave Law. Employers should consult with counsel before adopting any of the model forms to determine if they are compliant and appropriate for their workforce.
Employers should distribute the new Notice to current employees immediately, update their new hire notices and workplace postings with the new Notice, and evaluate with counsel whether they should adopt any of the new model forms. In addition, employers should ensure that their sick/safe time policies have been revised to reflect the expanded entitlements and guidance from the FAQs and distribute any revised sick/safe time policies to employees within 14 days of any revision to the policy. Employers may also consider training for Human Resources staff or other employees administering sick/safe leave to be sure they are up to date on the latest requirements. Lastly, as we reported in a prior alert, the DCWP issued proposed rules regarding ESSTA. The DCWP held a hearing on the proposed rules on March 2nd, and we will continue to monitor any developments that will impact employer policies. Employers with questions about the notice requirements or their sick/safe time policies should contact Sabrina Jorge at sjorge@fglawllc.com, Amanda M. Baker at abaker@fglawllc.com, or any other attorney at the Firm.
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